NGCOBO J
adopted and tabled in Parliament within a year of the promulgation of the Act. The
Act also establishes the Inter-Sectoral Committee for the Management of Sexual
Offences Matters (the Committee). The DPP and the National Commissioner of
Police are empowered to issue national instructions dealing with, among other things,
the manner in which sexual offences must be investigated and prosecuted and the
training of those involved in the investigation and prosecution of these offenders.
[183] Under our constitutional democracy, courts have no power to supervise or
interfere with the exercise by the executive or legislature of its functions unless the
circumstances amount to a clear disregard by the executive of the powers and duties
conferred upon it by the Constitution. Where there is such a disregard, courts are not
only entitled but obliged to intervene. But judicial review under our constitutional
democracy does not give courts the power to exercise executive or legislative
functions. It permits courts to call upon the executive and legislature to observe the
limits of their powers but does not permit courts to exercise those powers themselves.
Courts therefore have the duty to patrol the constitutional borders defined by the
Constitution. They cannot, therefore, cross those borders.
[184] Here the High Court ordered the Minister to refer matters dealt with in the
declaratory orders to the Committee and to instruct the Committee to address the
systematic shortcomings as part of the NPF. In effect, the order dictates to the
Minister, whose duty it is to develop the policy, what shall be included in the policy.
(b)
guide the implementation, enforcement and administration of this
Act”.
92
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